208 U.S.

548
28 S.Ct. 349
52 L.Ed. 614

FIRST NATIONAL BANK OF ALBUQUERQUE, Appt.,

v.
GEORGE F. ALBRIGHT, Frank A. Hubbell, and F. W.
Clancy.
No. 123.
Agrued and submitted January 22, 1908.
Decided February 24, 1908.

Mr. Alonzo B. McMillen for appellant.

[Argument of Counsel from pages 548-550 intentionally omitted]
Mr. Frank W. Clancy for appellees.
[Argument of Counsel from pages 550-551 intentionally omitted]
Mr. Justice Holmes delivered the opinion of the court:

This is a complaint or bill against the assessor, the treasurer and ex officio
collector, and the district attorney of the county of Bernalillo, New Mexico, to
enjoin the reassessment of a tax on stock and real estate for the year 1903 upon
the plaintiff bank, which the plaintiff is informed and believes the defendants
will attempt. The bill alleges that the plaintiff gave the assessor a list in which
capital stock, surplus, and real estate were lumped in a single item with a single
valuation of $90,000. Thereupon the assessor made a different valuation,
lumping the capital stock and valuing it at 60 per cent of its par value, and
giving separate figures for the surplus and the several parcels of real estate, the
total being $150,542. This was affirmed by the territorial board of equalization
on appeal. Afterwards the plaintiff the amount admitted by it to be due, and
was sued for the residue; but the suit was dismissed, the district attorney giving
out that a new assessment would be made. It is alleged that the assessor, in
1903, announced as his method of valuation that all property except bank
property and bank shares would be assessed at one third of its real value, but

that he would assess banks at 60 per cent of the capital stock and surplus in
addition to their real estate; that he did as he announced, and also assessed the
real estate without deducting the value 'from the valuation of other property
assessed against said banks.' Beside the prayer for an injunction there is another
that the treasurer and ex officio collector be ordered to cancel the abovementioned assessment upon his books. There was a demurrer, which was
overruled below, but sustained by the supreme court of the territory, with
directions to dismiss the complaint.
2

The complaint admits that the plaintiff's return was not in accordance with the
law, and the supreme court of the territory says that both that and the
assessment were bad, and that a reassessment is authorized by local law. We see
no reason to reverse its decision upon that point. If a reassessment is made, that
now on the treasurer's books will be disposed of and will be no cloud upon the
plaintiff's title, so that the whole question is whether a reassessment shall be
made. The plaintiff's objection is not the technical one that no reassessment is
authorized by statute, but the substantial apprehension that the shares will be
taxed 'at a greater rate than is assessed upon other moneyed capital in the hands
of individual citizens,' contrary to the words of Rev. Stat. 5219, U. S. Comp.
Stat. 1901, p. 3502, and that the value of real estate separately assessed and
taxed will not be deducted from the valuation of shares, as it is thought to be
implied by that section and required by the territorial laws of 1891, chap. 40
(Comp. Laws, 1897, 259), that it should be.

We assume that such an assessment of shares as is apprehended would be

invalid under Rev. Stat. 5219. First Nat. Bank v. Chapman, 173 U. S. 205,
219, 220, 43 L. ed. 669, 674, 675, 19 Sup. Ct. Rep. 407. We assume that it
would be invalid none the less if disguised as a tax on 60 per cent of the par
value, if other moneyed capital was uniformly had intentionally assessed at one
third of its actual value and if 60 per cent of the par value of the bank shares
was more than one third of their actual value. Accidental inequality is one
thing, intentional and systematic discrimination another. See, further, Raymond
v. Chicago Union Traction Co. 207 U. S. 20, ante, 7, 28 Sup. Ct. Rep. 7. We
agree with the plaintiff that the only taxes contemplated by 5219 are taxes on
the shares of stock and taxes on the real estate. Owensboro Nat. Bank v.
Owensboro, 173 U. S. 664, 669, 43 L. ed. 850, 852, 19 Sup. Ct. Rep. 537.
Hence, while the law does not consider the nature of the bank's investments not
taxed in fixing the value of its stock (Palmer v. McMahon, 133 U. S. 660, 33 L.
ed. 772, 10 Sup. Ct. Rep. 324), it may be argued consistently with the decisions
that real estate taxed to the bank, and land out of the territory, which could not
be taxed by it at all (Union Refrigerator Transit Co. v. Kentucky, 199 U. S.
194, 50 L. ed. 150, 26 Sup. Ct. Rep. 36), are meant to be deducted by Rev. Stat.

 5219, and are required to be by the territorial law. But we agree with the
supreme court of the territory that the time for deciding these and other
questions has not come.
4

The acceptance of what was admitted to be due created no estoppel to demand

more. There are no such precise averments in the complaint as would warrant
our assuming that no assessment could be made for a further amount, still less
that none in any form could be made, when there is no valid one upon the
books. We cannot tell, and much more positive averments of intent than those
before us would not warrant a court in prejudging, what the assessing officer
will do. It is not for a court to stop an officer of this kind from performing his
statutory duty for fear he should perform it wrongly. The earliest moment for
equity to interfere is when an assessment has been made. Probably it will be
made with caution, after this case.

Judgment affirmed.